Course Outline: Constitutional Law is a four credit required course. There is simply no way that the entire field can be covered in only four credits. A general survey of Constitutional Law would need eight or nine credits. (I taught a six credit sequence at another law school, and still had to cut out a substantial amount of the material.) With only four credits, the surgery must, obviously, be even more radical.

Essentially, we will cover the following, in varying degrees of detail:

• The particularly American concept of judicial review, which we basically invented in the late eighteenth and early nineteenth centuries, but which is gaining force throughout the world.

• The powers of the federal government, primarily Congress. This was the great battle of the first third of the twentieth century, culminating in the epic battle between Franklin Delano Roosevelt’s New Deal and the Five Old Men of the Supreme Court in the 1930s, the Court-Packing Scheme, and the Revolution of 1937, in which the Court agreed that Congress had the power to regulate aspects of interstate commerce that went far beyond its original definition of movement of goods and services and their financing. We had thought the battle was over, but beginning in 1995 the Supreme Court started again striking down federal legislation on the grounds that it was beyond Congress’s powers. The most important case of this generation on this topic will be argued in the Supreme Court this term, involving the Health Care Reform bill (“Obamacare” to the Tea Party). I expect that we will follow the case fairly closely, as will every newspaper and cable news station in the country.

• Federal-state relations, which has become an increasingly acrimonious issue in the present Supreme Court, with federalism challenges also involved in the litigation in the Supreme Court over the Health Care Bill. As you can see, this issue is profoundly intertwined with the debate over the powers of Congress.

• Separation of powers – typically, the President versus Congress, but sometimes the Court versus everybody (e.g., Bush v. Gore, in which the Supreme Court decided the 2000 presidential election). The G. W. Bush administration claimed unlimited powers for the President, treating terrorism as essentially a permanent war. It consistently lost in the Supreme Court and two district courts have recently rejected similar claims.

• Unwritten rights. This started as a conservative device to strike down social legislation in the early twentieth century, often called substantive due process. Economic due process claims have been consistently rejected since 1937 (another part of the Revolution of 1937), but there have been stirrings, even there. More on point, beginning in the 1960s the Court has recognized a right of privacy, viewed by some as nothing more than substantive due process favoring personal rights over economic rights. The right of privacy led to the Birth Control Cases in the sixties, Roe v. Wade in 1973, and Lawrence v. Texas, striking down Texas’s anti-sodomy laws.

• Freedom of Speech and Press. A massive topic that I can’t cover fully in a three credit course, but which you must learn something about. We have the world’s broadest protections against government restrictions on speech and press, but increasingly concentration of private power, combined with technological change, has raised questions whether private board rooms are the real threat, rather than government.

• Equal Protection. Another topic that can’t be completely covered in three credits, much less about 2/3 of a credit. We have come a long way since slavery and Jim Crow, but we have a long way to go. One problem is whether the issue is still discrimination against minorities, or whether government programs designed to help racial and ethnic minorities and women are themselves discriminatory or should be recognized as proper weapons in the elimination of the Badges and Incidents of Slavery.

That’s what we need to look at, in differing degrees of detail. It won’t be easy, especially in 70 minute blocks with about 20 pages of difficult reading three times a week. But it’s a wonderful subject and the quintessentially American one, one that every lawyer needs to understand. I hope you’ll take additional Con. Law courses, but at the least, you’ll get a sense of what it is all about.